car2403 -v- GE Capial Bank (Default removal)

[car2403]

GE Money are really, really beginning to annoy me now! I've received a Default Notice for this agreement, (why, when they've already Defaulted me?) so here is my "extremely toned down" response to them;

Dear Sir/Madam,

I refer to a letter I have received from you, headed “DEFAULT NOTICE Served under Section 87(1) of the Consumer Credit Act 1974” and dated 26 March 2008. I also refer to correspondence sent to you in reply to a letter I received from Lewis Debt Recovery, on your instructions. (Copies attached, for your information)

Firstly, this account is still in dispute – as you are well aware, due to the upcoming legal action that is currently pending against you. I won’t, therefore, repeat this dispute, as you already have this information on your files.

For extremely good legal reasons, the issuing of this Default Notice is further contrary to the rules and regulations surrounding Debt Recovery, as outlined by the Office of Fair Trading and referred to my the correspondence attached. As you seem insistent on pursuing this balance, despite it being legally unenforceable for the reasons outlined in my submissions to the Court, and COMPLETELY IGNORING my formal complaints to your company about the litigation and collection style that you are currently using, I feel I have no choice but to escalate these issues to the appropriate authorities.

Please take note that I intend to apply to the Court for an order delaying your termination of the alleged agreement, under the Default Notice issued, until such time that a final determination has been made in the outstanding Court claim. As you are well aware, the enforceability of a Consumer Credit Act Agreement is a very important factor in deciding whether you can Default and/or terminate that agreement within the prescribed methods outlined within Part VII, s.87/s.88 of the Consumer Credit Act 1974. I am also sure that the Court will frown on your continued collection of this account, which I believe is tantamount to harassment, as you have previously indicated an intention of negotiating a settlement of my claim against you – in fact, the proceedings are currently “stayed” pending this negotiation. I feel your actions here are very distasteful, down right dismissive and potentially damaging to your defence to my claim – information that I am fully prepared to share with the Court, as outlined.

Further, your actions in this case are contrary to the requirement of good faith and in breach of OFT Debt Collection Guidelines, as outlined in my letter to Lewis Debt Recovery, attached – this leads me to believe that you are blatantly not fit to hold a Consumer Credit License under the Consumer Credit Act. I therefore propose to report you to the Office of Fair Trading’s Consumer Credit Fitness Investigation and Enforcement team for their review.

I am also preparing a formal complaint to the Financial Ombudsman Service, as you have failed to respond to my formal complaint sent to you on 7 December 2007.

I believe that Leeds Trading Standards may also have an interest in hearing my complaint, at this time. I will leave you to judge what that means, as this stage.

I am, however, willing to delay this action, for a period of 7 days only, in order for you to confirm, in writing, that you will formally recall this Default Notice and strike details of its issuance from your records with immediate effect within those 7 days. The issue of this notice is unlawful under the Data Protection Act 1998 and is contrary to my s.10/s.12 Statutory Notice under that Act also. If you fail to do so, I reserve the right to take the actions outlined above, or any other that I deem fit to take, as a result of your failure.

You will see from your files that this account is “in dispute” with GE Capital Bank Limited - that this dispute still stands and has not been resolved.

As this account is in dispute and you were aware of this and are continuing to carry out collection activity, I now feel that you are in breach of your obligations under;

§ The Office of Fair Tradings Collection Guidelines – s2.8;
o “i. failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

§ The Banking Code – s.13.6
o “k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.”

§ Your Consumer Credit License

As such, I must ask you to take notice that you must cease all collection activity with immediate effect. The alleged credit agreement you are relying on does not provide you with permission to continue to contact me regarding this account, either by post or by personal contact, be that by telephone or visits to my property. In fact, OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you persist in sending "doorstep callers" to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction from the Court.

I also deem any further collection activity, of any nature that involves contacting me in relation to this account, an act of personal harassment, for the reasons outlined in this letter. Please ensure that your system is updated to reflect this, as I will bring any further letters or phone calls to the attention of the Police, to whom I will make a formal statement regarding your conduct given I have already warned you your behaviour causes me to feel harassed.

I am of the view that your continued harassment of me puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by calling me, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded and used as evidence in any further formal complaint.

I look forward to hearing from you soon and, in any case, with 5 working days of your receipt of this letter regardless.

Yours faithfully,

[Blossomandebony]

Originally Posted by car2403
Hearing date set for the Data Protection Act S.A.R - (Subject Access Request) late response damages - case considered appropriate to refer to mediation, or hearing date set for 18 April. (20 mins) Standard small claims track directions, file/serve documents at least 14 days before the hearing, etc, etc...

Surely they aren't going to take this all the way for £90+£30 issue fee+£25 hearing fee, are they?

Hi, Car,

Just skimmed through your thread and was very impressed by your ultra professional claim for costs a few posts ago!!! (Though I think you are being very generous by not claiming for treble that amount!).

Regarding the above quote, I had an identical case against Capital Bank about a year ago. My S.A.R - (Subject Access Request) request was only satisfied two weeks after the deadline of 40 days had passed. So, naturally I had issued a court claim by that time to:

1. Force them to comply with the S.A.R - (Subject Access Request) request, and

2. To pay me compensation of £300 for the expense of stationery, research etc on account of their non - compliance.

You would think that they wouldn't have bothered defending - as you suggest because the amounts were so small - but they did!

On the day of the hearing the district judge was fair and listened to my arguments BUT he concluded that - in a small claims court - both sides should pay their own costs. (Though I must say that I didn't have anything as good as your skeleton argument to back me up).

In other words, he didn't award me the £300! Happily, he didn't award any costs against me either. The Bank's solicitor had admitted that the S.A.R - (Subject Access Request) request was complied with AFTER the deadline and apologised for that. So it was a stalemate situation.

(However, another case I brought against the Co-Op for non compliance of a S.A.R - (Subject Access Request) within 40 days was settled before court for the grand total of £80!The Co-Op obviously didn't want to incur solicitor's costs when they could settle for a token payment.)

Hence, I can't see your claim for compensation re: non compliance of a S.A.R - (Subject Access Request) request being successful, unfortunately. However, the other side may not turn up at court and thus annoy the judge, so you never know. Here's hoping . . .

Good luck, BAE

[car2403]

Data Protection Act S.A.R - (Subject Access Request) enforcement/damages claim;

Court Bundle received from Salans for the Data Protection Act S.A.R - (Subject Access Request) damages hearing on the 18 April.

It's a bit strange, as they've included the same correspondance I have in my bundle, but seem to be relying on the agreement along with a "blank application form" (that's how they have referred to it!) then some account statements - quite how that justifies that they complied with my S.A.R - (Subject Access Request) request on time, I'm not sure.

As a reminder, their Defence to my S.A.R - (Subject Access Request) claim, (late information, so pursuing for costs in chasing them, etc) can be found here;

car2403 -v- GE Capial Bank (Default removal)

I'm surprised that they haven't offered a settlement, or taken my offer, here, as they clearly were late with the information, (their own bundle proves this!) will have to pay for someone to defend them in the hearing and will have to at least pay my costs for issuing the claim. (£30 issue fee and £25 hearing fee) They have no chance of getting costs of attending on the day, even if they Judge decides I lose, (unlikely) as it's a small claim.

Oh well, lets see what happens before/on 18 April, then.

Default Claim;


The Court Order gave until 10 April for "negotiations" to take place - remember that this was specifically requested by the solicitor attending the hearing! Since then, they've had this from me;

I've heard nothing from GE regarding any settlement of the default claim, so this is off to them;

If no agreement has been reached, I need to write to the Court to tell them by 10 April. (It hasn't!)

If the claim is to proceed, I can amend my POC and need to submit them by 14 April and await further directions.

I don't think I need to amend my POC now. I seem to remember (too many claims going on at once!) that I wanted to amend to reclaim the penalty charges that were applied to the account prior to default, but GE have sent a letter saying they will refund these (plus contractural interest applied to the charges) on to the account, so I don't need to do that now. I would like to see the outstanding balance, so I'm asking for a statement showing the adjustments they have made, along with statements for the entire lifetime of the account.

This is all very clever of GE, as I can blantantly see what they are trying to do. Their plan, which is quite clear to me, is to refund the penalty charges applied (along with contractural interest) then default/terminate the account again, once they've done that. In fact, I've already received the newly created default notice - see the posts at the top of this page of the thread for that. I've scanned it in and posted it here, for you to see; (it doesn't contain all the prescribed terms, BTW - will GE never learn?)

http://aycu27.webshots.com/image/502...5447222_rs.jpg

I don't think this will work, because;

Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

As their actions on this account amount to an "unlawful rescission of contract", they can't suddenly amend the account to remove the charges/interest and reissue the default notice again, IMHO. Why? A default notice is a method of terminating an agreement - as the original default notice included the penalty charges and I've suffered damage - (or at least have a counterclaim against them, if the Court doesn't accept the damages issue) they now do not have an agreement/contract that they can default/terminate within the terms of Part VII, s.87/s.88 CCA 1974. Even if they did, I would still be arguing that the same account/contract/agreement can't be defaulted/terminated twice, as there is no remit for this in the CCA - and such default/termination is clearly meant to bring the original agreement to an end.

I'll be including all this in my witness statement that will be needed nearer the hearing.

Don't forget that I still have the issues of improper execution of the agreement to argue - if that stands up, the original default, never mind this "new" one, would be unlawful.

I can't see anything happening in the next few days, so this is ready to post to the Court on Monday; (copy to Salans)

As ordered by District Judge XXX on XXX, I am writing to you with an update as to how the negotiations between myself and the Defendant is progressing.

Briefly, at the Directions Hearing on XXX, Mr. XXX, the representative appearing for the Defendant, requested a stay of proceedings to allow without prejudice negotiations that I had commenced with the Claimants representatives to continue. This was despite several pieces of correspondence between the parties prior to this date, where the Defendant had refused to negotiate with me on the issue of default removal, as outlined in the claim, going unanswered. I, however, agreed to a one month stay, on the basis that the Defendant would make a reasonable attempt to open up these negotiations further and reconsider it’s position on this precise issue.

I’m disappointed to have to inform the Court that, despite further correspondence being sent from me to the Defendant, the Defendant has failed to reply to my attempts to reach a settlement of the issues in dispute.

Further to this, the Defendant has saw fit to refund the charges applied to the account in question, (along with contractual interest applied as a result of the application of those charges) and to then go on to send me a “Default Notice” issued under s.87(1) of the Consumer Credit Act 1974, dated 26 March 2008. (Copy attached)

I believe that the Defendants behaviour in these proceedings is an attempt to frustrate my action against it, in that the Defendant is trying to falsely alter its position in defence of my claim against it. The Defendant is substantially changing its position prior to the final determination hearing at which the Court can decide the issues I’ve highlighted. I further believe that the Defendant will continue with this enforcement action, in the form of actually defaulting and terminating the agreement again. This is clearly against the overriding objectives of these proceedings – and is, indeed, in breach of the Office of Fair Tradings guidelines on Debt Collection, as the Defendant is seeking to enforce the agreement (in the form of a further default or termination) while the agreement is in still under dispute with the Court.

I believe that this further default or termination of the agreement must fail, as the issues in the claim surrounds the default and termination action already taken by the Defendant in relation to the account – there is no remit for the Defendant, in either the Consumer Credit Act or in the contract itself, for such action to take place twice, in relation to the same account. Further, (as I have already outlined in the claim itself) failure of the original Default or Termination Notice to be accurate not only invalidates that Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would prevent the Court enforcing any alleged debt. As the Defendants actions under the original Default and Termination of the agreement amounts to an unlawful rescission of the contract itself, any further attempt by the Defendant to recover its position by refunding these charges and Defaulting and Terminating the agreement again must fail – in law, no such agreement can be said to exist, due to this rescission, at this time, so the “agreement” is incapable of being terminated a second time around.

It is fair to say that the Defendant is at liberty to refund the charges applied to the account, but it is significantly altering the balance of powers of the parties at the forthcoming hearing by doing so, here. This is clearly unjust and inequitable in my view. I believe that the Defendant is abusing the Courts process, as it has requested a stay of proceedings to seek an out of Court settlement and has then used this time to further harass me in to making payments under the account while it is dispute.

Indeed, the Defendant itself has stated in a letter to me that it will place a temporary hold on my account to ensure I will receive no further collections correspondence. (Copy attached)

It is for this reason that I would respectfully ask that the Court order the Defendant to refrain from further defaulting/terminating the agreement again, or from taking any further Debt Collection activity on the account, for the reasons stated in this letter, and in the claim itself, to allow the substantial issues to be dealt with by the Court at the final determination hearing instead.

I have already written to the Defendant in these terms, but it has again failed to reply to that correspondence. (Copy attached)

In the alternative, where the Court decides not to take this action at this time, I would like the Court to know that I will be making further submissions surrounding this issue, to be included in a witness statement, at such time that this statement so ordered by the Court.

With regards District Judge Atherton giving me leave to submit amended particulars of claim, I would like the Court to know that I will not need to submit those documents – I originally requested leave to do so in order to amend the claim to include recovery of the charges applied. As the Defendant has agreed to refund these, plus interest, I do not feel I need to submit amended particulars of claim at this time.

Yours faithfully,

This claim has already been allocated to the small claims track.

[tomterm8]

OK, well, to give my 2p (that you asked for)...

recision of contract is a minefield. If they defaulted you unlawfully, they you are entitled to compensation for that default, but they are still (normally) entitled to their money back for services rendered under the principal of restitution.

In the above case, the compensation was greater than the amount owed, but this is at the discretion of the court.

They would not be entitled to seek early repayment of any sums due under CCA 1974, but it is likely that any repayments of the loan are already due? And any such sums can be claimed via the court, despite the lack of a default notice.

[car2403]

Originally Posted by tomterm8

OK, well, to give my 2p (that you asked for)...

recision of contract is a minefield. If they defaulted you unlawfully, they you are entitled to compensation for that default, but they are still (normally) entitled to their money back for services rendered under the principal of restitution.

In the above case, the compensation was greater than the amount owed, but this is at the discretion of the court.

They would not be entitled to seek early repayment of any sums due under CCA 1974, but it is likely that any repayments of the loan are already due? And any such sums can be claimed via the court, despite the lack of a default notice.

Thanks for popping in TT8, much appreciated.

Isn't the point here that the recission of contract means the Court can't enforce the debt? Legally, there can be no agreement if they have defaulted/terminated unlawfully - or, rather, that's my reading of the Act and the Woodchester/Wilson cases.

Incidentally, the fees for bringing the claims (there are 2 - default removal and Data Protection Act S.A.R - (Subject Access Request) enforcement) are more than the outstanding balance - I've offered to withdraw on the basis of write off of the debt and default removal, an offer which they haven't taken.

[tomterm8]

No, the courts can enforce a debt via the law of restitution, however, the court can't enforce early repayment, AND, they haven't legally terminated the account and so a default on your credit record is unlawful.

[car2403]

Is it worth asking them to remove the default and offering a consent order to pay regular payments, if they close the account and stop adding interest? That's after they've shown me the calculations regarding refunded charges, etc, first though.

I'm happy to pay, I just want this default removed.

[tomterm8]

That might be worthwhile, but I would hold off for a while and see. It's always worth negotiating by telephone, but say it is "without prejudice". If they refuse, you've lost very little.

[car2403]

Looking through the file again, this £206 balance seems to be the outstanding amount owed as well - they must have refunded the charges plus interest, leaving only that amount.

I think I'll just pay this off now, to prevent them defaulting the account again and continue with the claim for unlawful default from the first time around.

If they want to play games, they've picked the wrong person - I'm sure the Judge will frown on their approach, as they could have easily done this when I started complaining. IMO, they've forced this issue in to Court and are now wildly backpeddling to strengthen their position in defence - it won't work, as I will get my way.

[car2403]

Originally Posted by car2403

Data Protection Act S.A.R - (Subject Access Request) enforcement/damages claim;

Court Bundle received from Salans for the Data Protection Act S.A.R - (Subject Access Request) damages hearing on the 18 April.

It's a bit strange, as they've included the same correspondance I have in my bundle, but seem to be relying on the agreement along with a "blank application form" (that's how they have referred to it!) then some account statements - quite how that justifies that they complied with my S.A.R - (Subject Access Request) request on time, I'm not sure.

As a reminder, their Defence to my S.A.R - (Subject Access Request) claim, (late information, so pursuing for costs in chasing them, etc) can be found here;

car2403 -v- GE Capial Bank (Default removal)

I'm surprised that they haven't offered a settlement, or taken my offer, here, as they clearly were late with the information, (their own bundle proves this!) will have to pay for someone to defend them in the hearing and will have to at least pay my costs for issuing the claim. (£30 issue fee and £25 hearing fee) They have no chance of getting costs of attending on the day, even if they Judge decides I lose, (unlikely) as it's a small claim.

Oh well, lets see what happens before/on 18 April, then.

The Data Protection Act S.A.R - (Subject Access Request) damages claim has been settled - £100 cash and I'm withdraw my claim. The hearing on 18 is to be vacated.

Just the default issue to continue with now - I paid the arrears on the day the "new" default notice expired, so within the prescribed period. (I've even called back to check it was received on that day, and it definately was)

Given that the original default was unlawful, containing charges that they've now agreed to refund to the account (plus the contractural interest applied on those charges) I no longer have a debt with GE at all. If they agree to remove the default, I will agree to withdraw the claim.

Incidentally, they (Salans) wrote to me on 6 March to say they would refund the charges and interest - that hasn't happened yet, according to Customer Services. I'm now writing to them to say they haven't done what they said they would, have attempted to unlawfully default me again as the "new" default notice included the charges that they haven't refunded yet again and that I will agree to discontinue the claim if they agree to remove the defaults now, especially as the outstanding balance will be clear once they get their fingers out and refund the charges/interest. Worth trying my hand at settling, now, I reckon? All I want is this damned default removed! If they don't take the bait, I should be hearing from the Court sometime next week or the week after that with the final determination hearing date.

Interesting times...

[car2403]

Originally Posted by car2403

Incidentally, they (Salans) wrote to me on 6 March to say they would refund the charges and interest - that hasn't happened yet, according to Customer Services. I'm now writing to them to say they haven't done what they said they would, have attempted to unlawfully default me again as the "new" default notice included the charges that they haven't refunded yet again and that I will agree to discontinue the claim if they agree to remove the defaults now, especially as the outstanding balance will be clear once they get their fingers out and refund the charges/interest. Worth trying my hand at settling, now, I reckon? All I want is this damned default removed! If they don't take the bait, I should be hearing from the Court sometime next week or the week after that with the final determination hearing date.

Interesting times...

This letter went to the Court as well, with all the attachments relevant to prove my case against GE in this area. (That's a letter to the Judge outlining that they've failed to negotiate despite requesting a stay in proceedings for that specific reason, all the "without prejudice" letters I've sent them asking them to negotiate during the stay period which was ignored, a copy of the "new" Default Notice, a letter from GE saying they wouldn't be pursuing the debt while it was in dispute with the Court, a letter from Salans saying the charges + interest would be refunded and a couple of harassment complaint letters I sent)

The Judge must have had a real chuckle to himself when he read that little lot - the order is;

1. A copy of the claimants letter dated 8 April 2008 be sent to the Defendants Solicitor. (This is the little lot, above, which is attached to the order)

2. The Defendants Solicitor shall within 7 days of receitp of this order write to the Court giving details of the directions whey they seek for determining the matters in issue, after which the Court will give further directions on paper without a hearing.

3. Because this order has been made by the Court without considering repreesntations from the parties, the parties have the right